Contested wills are a significant aspect of estate planning and probate law, often leading to complex legal battles. These disputes typically arise when a family member or beneficiary believes that the will does not accurately reflect the intentions of the deceased. Here’s a comprehensive look at contested wills, including their causes, legal process, and strategies to avoid them, with a particular focus on the laws in Victoria, Australia.

Understanding Contested Wills

Definition and Occurrence A contested will is a challenge to the validity of a will, usually filed in a probate court. Such disputes occur more frequently in cases involving substantial wealth, complex family dynamics, or when the will’s provisions are unexpected or seem unfair to certain parties.

Common Grounds for Contest

  1. Undue Influence: Allegations that the deceased was pressured into making certain decisions.
  2. Lack of Capacity: Claims that the deceased lacked the mental capacity to understand the implications of the will at the time of its creation.
  3. Fraud or Forgery: Cases where there is suspicion that the will was tampered with or not actually created by the deceased.
  4. Improper Execution: Challenges based on the legal formalities of the will not being followed.

Contesting Wills in Victoria, Australia

Testator’s Family Maintenance Claim (TFM Claim) In Victoria, if a person feels they have been inadequately provided for from a deceased estate, they can contest the will through a TFM claim. This is applicable to estates where the deceased died on or after 1 January 2015.

Eligibility and Grounds for Contesting a Will in Victoria

  • The claimant must be an eligible applicant.
  • The claimant must believe they have been left without adequate provision.
  • The will in question must be valid.

Time Limits and Eligible Applicants The claim must be made within 6 months from the grant of probate. Eligible applicants include spouses, domestic partners, children, stepchildren, and other defined dependents.

The Legal Process

Initiating a Contest A will contest begins with filing a petition in the probate court. The burden of proof typically lies with the person contesting the will.

Probate Court Proceedings The court examines evidence, hears witness testimony, and considers arguments from both sides. This process can be lengthy and costly, often involving detailed forensic investigations.

Possible Outcomes The court may either uphold the will, amend certain provisions, or, in rare cases, invalidate the entire document. If invalidated, the estate may be distributed according to the previous valid will or, in the absence of one, under state intestacy laws.

Strategies to Avoid Will Contests

Clear Communication Openly discussing estate plans with family members can mitigate misunderstandings and disputes later.

Regular Updates Regularly updating the will to reflect current wishes and circumstances can minimize disputes.

Legal Expertise Engaging a reputable attorney to draft the will ensures that all legal formalities are correctly followed.

No-Contest Clauses Including a clause that penalizes anyone who contests the will can discourage frivolous challenges.

Mediation and Arbitration Encouraging mediation or arbitration as alternatives to court proceedings can resolve disputes more amicably and cost-effectively.


Contested wills can be emotionally and financially draining. The key to minimizing such disputes lies in clear communication, regular updates, and ensuring legal compliance in drafting wills. While not all contests can be avoided, understanding the process and potential challenges can help in better navigating these complex situations.

In Victoria, Australia, specific rules and time frames apply to contesting wills, reflecting the unique legal landscape of each jurisdiction. Remember, estate planning is not just about distributing assets; it’s also about peace of mind and reducing potential conflicts among loved ones. Consulting with legal professionals and considering the emotional dynamics of a family are crucial steps in creating a robust estate plan.